I rise today to address the recent vacancy on the United States Supreme Court, and to
urge my colleagues to grant swift consideration of the President’s eventual nominee.
Make no mistake, Mr. President, the passing of Justice Antonin Scalia came as a great
shock.
Though Justice Scalia and I did not share a common view of the Constitution or the country,
I recognize that he was a man of great conviction and, it should be said, a man of great humor.
My thoughts and prayers are with his family, his friends, his clerks, and his colleagues.
But Mr. President, we must now devote ourselves
to the task of helping to select his successor.
The Constitution so beloved by Justice Scalia provides that the President, quote “shall
nominate, and by and with the Advice and Consent of the Senate, shall appoint Judges of the
Supreme Court.”
Let us all remember that each and every senator serving in this body swore an oath to support
and defend that same Constitution.
It is our duty to move forward.
We must fulfill our constitutional obligation to ensure that the highest court in the land
has a full complement of justices.
Unfortunately, it would seem that some of my colleagues on the other side of the aisle
do not agree—and they wasted no time in making known their objections.
Less than an hour after news of Justice Scalia’s death became public, the Majority Leader announced
that the Senate would not take up the business of considering a replacement until after the
presidential election.
Quote, “[t]he American people should have a voice in the selection of their next Supreme
Court justice,” he said.
The only problem with the Majority Leader’s reasoning, Mr. President, is that the American
people have spoken.
Twice.
President Barack Obama was elected and reelected by a solid majority of the American people
who correctly understood that elections have consequences, not the least of which is that
when a vacancy occurs, the President of United States has the constitutional responsibility
to appoint a justice to the Supreme Court.
The Constitution does not set a time limit on the President’s ability to fulfill this
duty.
Nor, by my reading, does the Constitution set a date after which the President is no
longer able to fulfill his duties as Commander in Chief, or to exercise his authority to,
say, grant pardons or make treaties.
It merely states that the President shall hold office for a term of four years.
And by my count, there are in the neighborhood of 11 months left.
If we were to truly subscribe to the Majority
Leader’s logic and extend it to the legislative branch, it would yield an absurd result.
Senators would become ineffective in the last year of their term.
The 28 senators who are now in the midst of their reelection campaigns and the 6 senators
who are stepping down should be precluded from casting votes in committee or on the
Senate floor.
Ten committee chairs and 19 subcommittee chairs should pass the gavel to a colleague who is
not currently running for reelection or preparing for retirement.
Bill introduction, and indeed the cosponsorship of bills, should be limited to those senators
who are not yet serving in the sixth year of their terms.
If the Majority Leader sincerely believes that the only way to ensure that the voice
of the American people is heard is to lop off the last year of an elected official’s
term, I trust he will make these changes.
But I suspect he does not.
Rather, it seems to me that the Majority Leader believes that the term of just one elected
official in particular should be cut short.
Which begs the question, Mr. President, just how short should it be cut?
As I said, by my count, approximately 11 months remain in Barack Obama’s presidency.
11.
Now, 11 months is a considerable amount of time.
Sizable.
It has heft, to be sure, but I wouldn’t call it vast.
Then again, there’s a certain arbitrariness to settling on 11 months.
After all, it’s just shy of a full year.
Perhaps, in order to simplify matters, an entire year would be preferable.
Or maybe just six months—half a year.
It’s a difficult decision, Mr. President.
If only the American people had a voice in selecting precisely how much time we should
shave off the President’s term.
Now that I mention it, there is a way to give
the American people a voice in this decision.
The Majority Leader could propose a constitutional amendment.
It would of course have to pass both Houses of Congress with a two-thirds majority, but
that’s not an insurmountable obstacle.
Provided it clears Congress, the amendment would then bypass the President, which in
this case is very apt, and be sent to the states for their ratification.
So if the Majority Leader truly wants the voters to decide how best to proceed, our
founding document provides a way forward.
But Mr. President, suggesting that the Senate
should refuse to consider a nominee during an election year stands as a cynical affront
to our constitutional system—and it misrepresents our history.
The Senate has a long tradition of working to confirm Supreme Court justices in election
years.
One need look no further than sitting Associate Justice Anthony Kennedy, a Supreme Court nominee
appointed by a Republican President and confirmed by a Democratic Senate in 1988, President
Reagan’s last year in office.
So when I hear one of my colleagues say that, quote “it’s been standard practice over
the last 80 years to not confirm Supreme Court nominees during a presidential election year,”
I know that’s not true.
And I’m not the only one.
The fact-checking publication Politifact recently observed that, quote “[s]hould Republican
lawmakers refuse to begin the process of confirming a…nomination, it would be the first time
in modern history.”
SCOTUSblog, an indisputable authority on all matters related to the Court, confirmed that
the, quote “historical record does not reveal any instances [in over a century] of the … Senate
failing to confirm a nominee in a presidential election year because of the impending election.”
The fact of the matter is that there is a bipartisan tradition of giving full and
fair consideration to Supreme Court nominees.
Since the Judiciary Committee began to hold hearings in 1916, every pending Supreme Court
nominee save 9 has received a hearing.
And you know what happened to those 9 nominees?
They were confirmed within 11 days of being nominated.
In 2001, during the first administration of President George W. Bush, then-Judiciary Committee
Chairman Leahy and Ranking Member Hatch sent a letter to their Senate colleagues making
clear that the Committee would continue its longstanding, bipartisan practice of moving
pending Supreme Court nominees to the full Senate, even when the nominees were opposed
by a majority of the Committee.
But regrettably, my colleagues on the other
side of the aisle are leaving that long tradition behind.
Yesterday, every Republican member of the Senate Judiciary Committee sent a letter to
the Majority Leader vowing to deny a hearing to the President’s eventual nominee.
“This Committee,” they wrote, “will not hold hearings on any Supreme Court nominee
until after our next President is sworn in on January 20, 2017.”
Mr. President, this marks an historic dereliction of the Senate’s duty and a radical departure
not just from our Committee’s past traditions, but from its current practices.
I know that my good friend Chairman Grassley
cares a great deal about maintaining the legacy of the Judiciary Committee and the propriety
of its proceedings.
Under his leadership, we’ve seen the Committee put country before party and move consensus,
bipartisan proposals.
And I had hoped that Chairman Grassley would approach the task of confirming our next Supreme
Court justice with the same sense of fairness and integrity.
I still hope that.
But I was very disappointed to learn that yesterday, Chairman Grassley gathered only
Republican Committee members in a private meeting where they unilaterally decided, behind
closed doors, to refuse consideration of a nominee.
The decision to foreclose even holding a hearing for a nominee to our nation’s highest court
is shameful, M. PRESIDENT, and I suspect that the American people share that view.
The Supreme Court is a central pillar of our
democracy.
The women and men who sit on that bench make decisions that touch the lives of every single
American—regardless of party or political persuasion.
Now the Senate must do the same.
We must honor our solemn duty to uphold the Constitution, and to ensure Americans seeking
justice are able to have their day in court—before a full bench of nine justices.
I urge my colleagues to reject the impulse to put politics before our sworn duty to uphold
the Constitution.
Thank you.